Deepa Widow Of Late Rishipal And ... vs Om Prakash S/O Sri Jeevan Dass, ...

on 5 July, 2007

Uttaranchal High Court

Deepa Widow Of Late Rishipal And ... vs Om Prakash S/O Sri Jeevan Dass, ... on 5 July, 2007
Author: R Tandon
Bench: R Tandon
JUDGMENT Rajesh Tandon, J.

1. Heard Sri Sharad Sharma for the revisionists and Sri Lokpal Singh for the respondents.

By the present application the applicants have sought review of the order on the ground that the
application under Order 9 Rule 13 C.P.C. was not maintainable as sale deed has been set aside by
way of decree dated 28.2.2000. Thereafter defendants have sold the property on 20th of August
2003 and as such the principle of lis pendens will not apply and the application under Order 9 Rule
13 was not maintainable, as no right has been accrued to them to file application.

2. Before dealing with the aforesaid submission, it may be pointed out that a suit was filed being suit
No. 120 of 1997 for cancellation of sale deed dated 2.8.1996 registered before the sub Registrar on
16.9.1996. In the plaint in paragraph 3 and 4 it has been stated that the property was agreed to be
sold on a sum of Rs. 70,830/- whereas defendants have paid only a sum of Rs. 5,000/- and Rs.
65,830/- remained due and as such revisionists have sought cancellation of sale deed dated 7.8.1996
on the ground that it is a a void document. The plaintiff has claimed only for cancellation of sale
deed and has not sought any relief for realisation of the amount. Prayer to that effect is being quoted
below:

d& ;g fd fMxzh cgd oknhx.k cjf[kykQ izfroknhx.k ckcr eUlw[kh cSukek fnukafdr 2-8-66 ftldh
jkftLVªh cgh ua0 1 ftYn 2 ds i`"B 234 ,Mh0Q0cq0ua0 ftYn ch ua0 1 ua0 1778 ij fnukad 16-6-66 bZ0
dk;Zky; :M+dh dks fu;ekuqlkj nh tkos A [k& ;g fd [kjpk eqdnek oknhx.k dks izfroknhx.k ls fnyok;k
tkos A

3. The suit was decreed ex parte on 28.2.2000 and as a result of ex parte decree the sale deed
executed on 2.8.1996 conferring the title upon the defendants No. 2 and 3 declared null and void.
However, on 20.8.2003 the respondent No. 1 Om Prakash filed an application under Order 9 Rule
13 C.P.C. getting the ex parte decree set aside and for restoration of the suit on the ground that the
defendant No. 8 Chandra Sethi has executed sale deed in favour of Om Prakash defendant No. 1.
according the defendant No. 1 he has played a fraud. The name of Chandra Sethi still continues in
the revenue record as Bhimidhar. In the application under Order 9 Rule 13 C.P.C. this fact has been
mentioned as under:

1- ;g fd is'krj oknxzLr lEifRr dk ekfyd o dkfct foi{kh la[;k 8 crkSj Hkwfe/kj ladze.kh; pyk vkrk jgk gS
rFkk foi{kh la[;k 8 }kjk oknxzLr lEifRr fofHkUu cSukeks }kjk dz; dh x;h vkSj foi{kh la[;k 8 oknxzLr
Hkwfe ij crkSj ekfyd dkfct pyk vkrk jgk gS vkSj blh izdkj ls jktLo vfHkys[kks es foi{kh la[;k 8 dk uke
ntZ pyk vkrk jgk gS A

4. The purchaser verified the record from the revenue authorities regarding the genuineness of the
title of defendant No. 2 but the real fact was that the sale deed having already-been cancelled by a

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 Deepa Widow Of Late Rishipal And ... vs Om Prakash S/O Sri Jeevan Dass, ... on 5 July, 2007

decree dated 28.2.2000. In fact both Om Prakash and Chandar Sethi both have the cause of action
to get the ex parte decree set aside on the following two points:

A. The decree for cancellation of sale deed was passed ex parte on 28.2.2000.

B. Om Prakash defendant No. 1 has reluctant that defendant No. 1 Chandra Prakash is the owner of
the property, therefore, the application under Order 9 Rule 13 C.P.C. was very much maintainable.

5. Counsel for the applicants has submitted that a third person has no right to file application under
Order 9 Rule 13 C.P.C. In Raj Kumar v. Sardar Lal and Ors. 2004 AIR SCW 470. The Apex Court has
observed as under:

A decree passed against the defendant is available for execution against the transferee or assignee of
the defendant-judgment-debtor and it does not make any difference whether such transfer or
assignment has taken place after the passing of the decree or before the passing of the decree
without notice or leave of the Court.

The appellant cannot dispute that the decree though passed against Respondents 2 and 3 could be
executed even against Respondent 4, he being a lis pendens transferee though not having been
joined in the suit as a party. Such a person can prefer an appeal being a person aggrieved. Clearly,
the person who is liable to be proceeded against in execution of the decree or can file an appeal
against in decree, though not a party to the suit or decree, does have locus standi to move an
application for setting aside an ex parte decree passed against the person in whose shoes he has
stepped in. In the expression employed in Rule 13 of Order 9 CPC that "in any case in which a decree
is passed ex parte against a defendant, he may apply for an order to set it aside", the word "he"
cannot be construed with such rigidity and so restrictively as to exclude the person, who has stepped
into the shoes of the defendant, from, moving an application for setting aside the ex parte decree.

6. The Apex Court in the aforesaid paragraph has clearly observed that it does not make any
difference that whether such transfer or assignment has taken place before or after passing of the
decree and as such the submission of the counsel for the applicant that the principle of lis pendens
has no appliation in this case, has no substance.

7. Counsel for the applicant has referred the judgment of the Division Bench of Allahabad High
Court in Mohan Lal Garg v. Suresh Chand Jain and Ors. where it has been held that where the ex
parte decree could constitute to be a nullity, the aggrieved person although was not a party to the ex
parte decree would have a right to get such a decree set aside not only by filing a regular suit, but
even by taking objection in collateral proceedings.

8. Counsel for the applicant has further referred the judgment of Allahabad High Court in Suajdeo v.
Board of Revenue , where it has been held that where a stranger who was not a party to a suit alleges
that the decree passed therein is obtained by fraud and collusion, he can bring aregular suit for the
reliefs claime by him but there is no hard and fast rule that he cannot bring the correct facts to the
notice of the court concerned that fraud had been practised upon the court and that the court had

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committed patent illegality in passing the ex parte decree in favour of the plaintiff in that suit
specially when he was likely to be affected by the ex parte decree in favour of the plaintiff in that
suit. If a person has two remedies open to him, he can pursue either. There may be cases where a
third person can bring correct facts to the notice of the court concerned and the court concerned will
be fully justified in acting upon the information received and in exercising powers under Section 151
C.P.C. when stranger is vitally interested in the subject matter of the suit decreed ex parte
application by him to set aside the ex parte decree is competent. Even assuming that a stranger has
no locus standi to move the application for setting aside the ex parte decree, it cannot be said that
the trial court had no jurisdiction to set aside the ex parte decree which was against the provisions of
law and was the result of collusion and fraud practised by the plaintiff and the defendants in that
suit.

9. In the case of Surajdeo (supra) it has been further held that a revisional court should not exercise
its powers to set aside even an illegal and wrong order if it results in restoring another illegal and
wrong order. The observations are quoted below:

It is well known that a revisional court should not exercise its powers to set aside even an illegal and
wrong order if it results in restoring another illegal and wrong order. I find that the above salutary
rule has escaped the notice of the revisional court and it has failed to approach the problem involved
in the present case from the correct angle. Moreover, I have already indicated that the trial court
rightly set aside the ex parte decrees in favour of the contesting opposite parties through its order
dated 10.6.1969.

10. In the present case sale deed has been executed by a person who has no right to execute the sale
deed and as such fraud has been played upon the vendee and application filed by him under Order 9
Rule 13 C.P.C. is very much maintainable.

It is a fit case where the power has been exercised by the Court below by entertaining the application
under Order 9 Rule 13 C.P.C.

11. So far as, the merit of the review petition is concerned, the review petition can be filed only for
consideration of important matters or evidence which, by mistake or error on the face of the record
could not be considered when the order was passed. A review petition cannot be filed for re-hearing
of the entire matter by changing the counsel as well.

12. The Hon'ble Apex Court in the case Northern India Cateres (India) Ltd. v. Lt. Governor of Delhi
has observed as under:

It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court
merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a
judgment pronounced by the Court is final, and departure from that principle is justified only when
circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v.
State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory
provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta

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15. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to
pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review
its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that
power is subject to the provisions of any law made by Parliament or the rules made under Article
145. In a civil proceeding, an application for review is entertained only on a ground mentioned in
Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an
error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But
whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be
equated with the original hearing of the case, and the finality of the judgment delivered by the Court
will not be reconsidered except "where a glaring omission or patent mistake or like grave error has
crept in earlier by judicial fallibility": Sow Chandra Kante v. Sheikh Habib (1975) 3 SCR 935.

13. In the case Parison Devi v. Sumitri Devi Hon'ble Supreme Court has held that while exercising
power under Order XL VII Rule 1 of the Code of Civil Procedure it is not permissible for erroneous
decision to be reheard and corrected and the power of review cannot be exercised to be an appeal in
disguise. Hon'ble Supreme has observed as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order
47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined:

What, however, we are now concerned with is whether the statement in the order of September 1959
that the case did not involve any substantial question of law is an 'error apparent on the face of the
record'). The fact that on the earlier occasion the Court held on an identical state of facts that a
substantial question of law arose would not per se be conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong, it would not follow that it was an
'error-apparent on the face of the record', for there is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous decision and a decision which could be
characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, but lies only for patent error.

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an
error apparent on the face of the record. An error which is not self-evident and has to be detected by
a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying
the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and
corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed
to be "an appeal in disguise.

14. In the case Union of India v. Paul Manicram the preposition of law discussed as above lis been
consistently upheld by the Apex Court.

As noted supra, for the first time in the review application it was disclosed that the representation
was made to the President of India and no representation was made to the State of Tamil Nadu or
the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate

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attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The
High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new
substratum of issues. Considering the limited scope for review, the High Court ought not to have
taken into account factual aspects which were not disclosed or were concealed in the writ petition.
While dealing with a habeas corpus application undue importance is not to be attached to
technicalities, but at the same time where the court is satisfied that an attempt has been made to
deflect the course of justice by letting loose red herrings the court has to take serious note of unclean
approach. Whenever a representation is made to the President and the Governor instead of the
indicated authorities, it is but natural that the representation should indicate as to why the
representation was made to the President or the Governor and not the indicated authorities. It
should also be clearly indicated as to whom the representation has been made specifically, and not
in the manner done in the case at hand. The President as well as the Governor, no doubt are
constitutional Heads of the respective Governments but the day-to-day administration at respective
levels is carried on by the Heads of the Departments/Ministries concerned and the designated
officers who alone are ultimately responsible and accountable for the action taken or to be taken in a
given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an
expeditious consideration or disposal of his grievance, he would and should honestly approach the
real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately
creating a situation for delay in consideration and cry for relief on his own manipulated ground, by
directing his representation to an authority which is not directly immediately concerned with such
consideration.

15. Hon'ble Supreme Court in the case Parsion Devi v. Sumitri Devi has observed that rehering the
matter for detecting an error in the earlier decision and then correcting the same do not fall within
the ambit of review jurisdiction. The Apex Court has observed as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order
47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of this Court opined:

What, however, we are now concerned with is whether the statement in the order of September 1959
that the case did not involve any substantial question of law is an 'error apparent on the face of the
record'). The fact that on the earlier occasion the Court held on an identical state of facts that a
substantial question of law arose would not per se be conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error
apparent on the face of the record', for there is a distinction which is real, though it might not always
be capable of exposition, between a mere erroneous decision and a decision which could be
characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, but lies only for patent error.

16. Thus the review petition, is liable to be rejected on the grounds that the power of review cannot
be exercised as an alternative mode of appeal or to permit the parties to provide another
opportunity of hearing on merit, more so when the grounds taken by the review petitioner in the
review application have already been discussed and considered on merit, this Court lacks
jurisdiction to interfere with the impugned judgment and order and cannot act as a Court of appeal

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in the review application.

In view of the above, the review petition is dismissed. No order as to costs.

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